Code Is Law

Let’s face facts. The most important Christmas season in your history is now out of your hands. The software is installed, the fulfillment and procurement deals are done, and the marketing plan is set. All you can really do is sit tight for emergencies, think about next year, and worry.

How can you take your mind off it and still do something useful with your time? How about thinking, not about the web in 2000, but the web in 2020? How about reading Lawrence Lessig’s “Code: And Other Laws Of Cyberspace”?

You probably remember Lessig, currently on leave from Harvard Law, as the former Special Master in U.S. vs. Microsoft. You may know him as a columnist for the Industry Standard. You may not know that he clerked for both Antonin Scalia and Richard Posner. (The former is the Supreme Court’s leading conservative, the latter was just appointed the mediator in U.S. vs. Microsoft)

Lessig is also, whether you (or I) like it or not, the most original legal thinker of our time, the only man I know of doing original legal work on cyberspace.

Lessig’s premise is based on differences between “West Coast code,” which is written in a computer, and “East Coast code,” which is set down by courts and Congress. He prefers the former, but he denies that means the web will be anarchic. In fact, he argues West Coast code is more likely to control the Internet (and its people) with an iron grip, and East Coast code may be our only protection against those excesses.

If your idea of a lawyer is Perry Mason, then Lessig doesn’t play fair. Rather than merely argue against extended copyrights, he put together a web site to argue the point.

Rather than seek publication in dry legal tomes, he took a column at the Industry Standard. Rather than hang around Harvard this term, he’s working at an Institute in Berlin – that’s just a few hundred miles from Thomas Middlehoff’s office at Bertelsmann. (Middlehoff, in my opinion, is the most important figure in Internet governance today.)

Whether you agree or disagree with Lawrence Lessig (Is he a liberal? Can any of Scalia’s ex-clerks be defined as such?), he must be dealt with. If you want some other model of the legal future, first argue against his book. (Lessig also has a sense of humor. The alternate URL for his book’s web site is – Declan McCullough is Wired’s man in Washington.)

If you like what Lessig is saying, cheer up – he’s his own best advocate. If you don’t like what he’s saying, better find a champion to stand against him, a Frazier to his Ali, because otherwise he’ll roll you.

This is the kind of intellectual exercise that will make your down time this month productive. It will take your mind off what you can’t control, and get you riled-up for battles to come.

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